UPCA found to be unconstitutional in Hungary

On 29 June 2018, the Hungarian Constitutional Court found that the UPCA was unconstitutional, as a matter of Hungarian law, because it provides exclusive jurisdiction to a non-EU European institution on certain patent matters which cannot then be reviewed under the Hungarian Fundamental Law (Constitution). It is now unlikely Hungary will participate in the UPC system without amendments to the UPCA or Hungarian Fundamental Law.

UK’s Brexit White Paper reaffirms commitment to the UPC

On 12 July 2018, the UK published a White Paper which set out proposals for the post-Brexit EU/UK relationship. The White Paper reaffirms the UK’s commitment to the UPC and says that the UK “intends to explore staying in the [Unitary Patent] Court and unitary patent system after the UK leaves the EU”, and “will therefore work with other contracting states to make sure the Unified Patent Court Agreement can continue on a firm legal basis”.

UK ratifies the UPC Agreement

On 26 April 2018, the UK announced that it had ratified the UPC Agreement. This is significant progress for the UPC, as the UK is one of three members whose ratification is mandatory before the UPC can come into effect (along with France and Germany). As France has already ratified, this leaves Germany as the only member left to ratify before the UPC can open for business. Progress towards ratification in Germany has been impeded by a recent constitutional challenge in the German courts - see further here. For further information on the UK’s continued participation in the UPC following Brexit, see here.

German Constitutional Challenge Provisionally Stops Ratification

In June 2017, the German Federal President (Bundespräsident) provisionally suspended the ratification of the UPC Agreement following a request by the Federal Constitutional Court (Bundesverfassungsgericht). A constitutional complaint has been lodged against the German ratification act of the UPC Agreement. The suspension does not pre-empt the outcome of the constitutional complaint but aims to prevent irreparable steps being taken while the court makes its decision. A decision is expected no earlier than spring 2018. Further information can be found here.

Linklaters backing opinion from leading counsels on legality of UK participation in the Unitary Patent and UPC after Brexit

Through its participation in the UK’s Intellectual Property Lawyers' Association, Linklaters instructed leading counsel to consider whether the UK can participate in the Unitary Patent and UPC after a Brexit. Counsel’s view is consistent with our own. The full text of the opinion is available here.

Latvia ratifies the UPC Agreement

On 11 January 2018, Latvia deposited the instrument of ratification of the UPC Agreement with the European Council, becoming the 15th Contracting Member State to do so. (Track all ratification progress on the Council’s website here.)

On 21 December 2017, the UPC Preparatory Committee announced that the UPC’s “provisional application phase” will last for an estimated 6 to 8 months. This is the period in which parts of the UPC Agreement will apply provisionally before it enters into force, allowing the UPC to complete various preparatory steps (e.g. the recruitment of judges) before its launch. However, the beginning of this phase remains difficult to predict, pending the resolution of the constitutional complaint before the German Federal Constitutional Court (see further here).

UP & UPC interactive map

An interactive map showing the footprint of the new system and its locations.